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On the EU Contribution to the Peace Process in Sri Lanka
Gajendrakumar Ponnambalam
at Brussels 7 March 2006
Article 1(2) of the UN Charter provides that one of the purposes
of the UN is "To develop friendly relations among nations based on respect for
the principles of equal rights and self-determination of peoples". Article 55,
concerning Economic and Social Cooperation, instructs the UN to promote higher
standards of living, solutions to health and cultural problems, and universal
respect for human rights "with a view to the creation of conditions of stability
and well-being which are necessary for peaceful and friendly relations among
nations based on respect for the principle of equal rights and
self-determination of peoples".
Subsequently the 1960 Declaration on the Granting of Independence to Colonial
Countries and Peoples in Article 2 states, "All peoples have the right to
self-determination; by virtue of that right they freely determine their
political status freely pursue their economic, social and cultural development".
The Declaration also adopts a functional definition of colonialism, speaking of
colonialism in "all its forms and manifestations". Thus, it does not limit
itself by its express terms, to the subjugation of non-European peoples by
Europeans.
Rather, it undertakes a practical approach in which the emphasis is upon the
fact of subjugation by a racially or ethnically distinct group, which need not
be European. Clearly, as long as peoples living within independent states
continue to suffer the same ills and consequences under their new rulers that
they suffered under traditional colonialism then the principle of
self-determination retains its applicability.
By 1966, the right of peoples to self-determination had made its appearance in
the two International Covenants on Human Rights as a free standing maxim, beyond
the confines of normative practices on decolonization. The provision in Article
1 of both Covenants was significant because for the first time, the right of
self determination had been formulated within a universal document concerning
human rights, which recognized the legal obligations of the state parties to it.
Of crucial importance to understanding of the present status of the right to
self-determination outside of the decolonization era is the General Assembly's
1970 Declaration on Friendly Relations and Co-operation among States. Paragraph
7 which deals with the maintenance of territorial integrity, has been
interpreted to recognize the legitimacy of secession under certain
circumstances.
The first part of paragraph 7 warns that nothing in the foregoing text should be
construed as authorizing or encouraging the dismemberment or impairment of the
territorial integrity or political unity of sovereign and independent states.
Paragraph 7, however, implies that not all states will enjoy this inviolability
of their territorial integrity, but only those states "conducting themselves in
compliance with the principles of equal rights and self-determination of peoples
as described above". In a telling final clause, paragraph 7 offers a partial
definition of the meaning of the compliance provision, by stating "and thus
possessed of a government representing the whole people belonging to the
territory without distinction as to race, creed or color".
The notion embodied in this final clause is clearly, that the legitimacy of
government derives from the consent of the governed and that consent cannot be
forthcoming without the enfranchisement of all segments of the population. By
placing the language at the end of the paragraph 7 in the form of a saving
clause, the Declaration affirmed the concept of "consent of the governed".
Therefore, if a government does not represent all of its peoples it is
illegitimate and thus in violation of the principle of self-determination, and
this illegitimate character serves in turn to legitimate "action which would
dismember or impair, totally or in part, the territorial integrity or political
unity" of the sovereign and independent state.
So clearly, the Declaration on Principles of International Law concerning
Friendly Relations and Co-operation among States clarified and reconciled the
different approaches to the right to self-determination, as espoused over the
preceding years in the various UN resolutions and international instruments. It
instilled the primacy of seeking an improvement of the condition of individuals
and minority nations within multi-national states, by subjecting those states to
external international pressure. It clearly inverted the movement to establish
self-determination as a human right along with others, such as the establishment
of a representative government, to be observed when acting in compliance with
the principle of self-determination. And finally, it reinforced the right to
self-determination by brandishing a legitimization of secession where the
coercive force of international opinion was insufficient to moderate a state's
internal policies.
It is also relevant to recall the decision of the Supreme Court of Canada in the
case relating to the secession of Quebec. The Court ruled, and I quote:
"The International Law right to self-determination only generates at best a
right to external self-determination, in situations of:
former colonies,
where a people is oppressed as for example under foreign military occupation, or
where a definable group is denied meaningful access to Government to pursue
their political, economic, social and cultural development.
In all three situations the people in question are entitle to a right to
external self-determination because they have been denied the ability to exert
internally their right to self-determination".
The Court further ruled and I quote "that such exceptional circumstances are
manifestly inapplicable to Quebec under existing conditions".
In the island of Sri Lanka however, unlike in Quebec, a definable group, the
Tamil Nation, is being consistently subjected to the hegemony of the Sinhala
Nation. The areas of historic habitation of the Tamil speaking people is being
oppressed by the occupation of the Sri Lankan State's armed forces which is 99%
Sinhala in composition. The Tamil Nation is being consistently denied meaningful
access to Governance to pursue political, economic, social and cultural
development. All three Sri Lanka constitutions entrenched the unitary character
of the Sri Lanka State in the face of demand for power sharing arrangement by
Tamils asserting their right to self-determination.
The mandate obtained by the Tamil National Alliance (TNA) has been yet another
demonstration of the consistent Will of the Tamil Nation to exercise its right
to self-determination. The expression of this Will has been loud and unambiguous
over the last fifty years, and remains today the bulwark of the legacy of the
Tamil National liberation struggle.
Whilst the Tamil People have repeatedly stated that we are prepared to arrive at
a negotiated solution that gives expression to this legacy, and at the same time
not divide the country, the systematic undermining of this Will has accentuated
and aggravated the Tamil National question into what it is today.
Sovereignty, vests with the Peoples of each state. By extension, it is only when
the Sovereign Will of all the Peoples of a particular state finds expression in
the structure of the state, can it be said that the state belongs to all its
Peoples. The Sri Lankan state as it exists today, only gives expression to the
Sovereign Will of the Sinhala People, and continues to undermine and reject the
Sovereign Will of the Tamil People. And as such, the Sovereignty of the Tamil
People does not vest in the Sri Lankan state, and accordingly the Tamil People
show no loyalty to the Sri Lankan state. Loyalty is a sentiment, not a law. It
rests on love, not on restraint. The governance of the Tamil Nation by the
Sinhala Nation rests on restraint, and not on love; and since it demands no
love, it can evoke no loyalty.
The contradictions between the Will of the Tamil People, and the actions of
successive governments, have continued for quite long and surely cannot continue
indefinitely. The concept of Sovereignty being vested in the people, has no
meaning as far as the Tamil people are concerned, if their Will as expressed at
successive elections, does not give them, an effective say in governance, in
keeping with the Will expressed. The Will of the Tamil people is that their
right to self-determination in their area of historical habitation - the
Northeast, be accorded due recognition, so that they can pursue their political,
economic, cultural and social development in keeping with their own wish. The
right to self-determination has been consistently denied to the Tamil people.
Despite the clear expression of their Will at successive elections they continue
to be powerless in regard to the management of their own affairs. Nothing can be
more humiliating to the Tamil psyche than the non-recognition of their
collective Will. This situation if continued will have serious repercussions.
Whilst this be the sad reality faced by the Tamil People for over fifty years,
which led to the cry for the establishment of a separate state in the area of
historic habitation of the Tamil speaking people in the Northeast of the island
of Sri Lanka. And despite this National Liberation struggle led by the
Liberation Tigers of Tamil Eelam (LTTE) reaching the position of having won over
physical control of nearly 70% of the Tamil Homeland, even in this late hour the
Tamil Nation has demonstrated its desire to find a viable alternative to a
separate state by entering into a Ceasefire Agreement with the Sri Lankan State
just over four years ago. The reaction of the Sinhala Nation has been to elect a
President as recently as November 2005 whose express policy for which an
overwhelming majority of the Sinhala people have voted was to:
Uphold the Unitary structure of the state;
The rejection of concepts of power sharing, federalism and
self-determination;
The refusal to recognize the areas of historical habitation of the Tamil
speaking people.
There can be no doubt in anyone's mind that the cumulative
effect of these policies will be to shut the door on any possibility of finding
a negotiated solution to the Tamil National question.
Not only has the last four years of the peace process demonstrated a complete
lack of will by the Sinhala Nation to accept the Tamil Nation's legitimate and
just political aspirations as recognized by International Law, but rather has
been systematically been undermining the collective will of the Tamil people not
only politically but militarily as well.
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